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Immigration and State’s Powers

The VisaMigrationAdministration, DOJ and DHS continue to oppose state passed immigration laws including those requiring verification of immigration status prior to hiring and those prohibiting illegal aliens from filing for financial benefits.

The Administration’s argument is not based on the public outcry that state legislation discriminates against immigrant groups; it rests on the Supremacy Clause of the Constitution, which prohibits states from violating areas of federal authority. Specifically, the complaint asserts “…States may not establish their own immigration policy or enforce state laws in a manner that interferes with the federal immigration laws.” The complaint further asserts “States are encroaching on an area reserved for the federal government, therefore, second guessing federal government law enforcement priorities.”

The Supremacy Clause can be used as an argument when the federal government is acting in pursuit of its constitutionally authorized powers, as noted by the phrase "in pursuance thereof" in the text of the Supremacy Clause. In 1982 the Supreme Court ruled: "A State statute is void to the extent that it actually conflicts with a valid Federal statute." In effect, a State law will be found to violate the supremacy clause when one or both of the following conditions exist:

  • Compliance with both the Federal and State laws is impossible, or
  • "...state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress"

Neither of the above conditions exists in the case of Arizona’s, Georgia’s or legislation pending in other states. The constitution does not support the federal government’s preeminence argument because the legislation passed at the state level is based upon and is in compliance with the objectives of the federal immigration law. Furthermore, the states actions are a direct consequence of the federal government not enforcing federal immigration law, which in turn has a negative impact on the states and their citizens.

The Federal Government has failed to protect the interest of the people by failing to enforce the Immigration and Nationality Act. In turn, the states have taken steps to protect their interest and the interest of their citizens by passing legislation to support enforcement of federal immigration law. There is no conflict with federal statue; therefore, the Supremacy Clause does not apply.

The Federal Government also argues state immigration laws set foreign policy. How a law that incorporates federal statue defines foreign policy is beyond my ability to comprehend! They also argue differing approaches to enforcing immigration law undermines federal authority. The Arizona law, Georgia’s and others pending, is based on federal statue. When enforced, illegal aliens will not be imprisoned or deported by the states, they will be turned over to Immigration and Customs Enforcement for processing. Where is the inconsistency? The inconsistency comes into play when the federal government does not enforce the law. The federal government has compromised its own authority!

The federal government has the duty to enforce all laws passed by Congress, and the law upon which the federal government rests its case demands they “faithfully” execute and enforce all laws. I have not found any federal

 

statute that prohibits states from enforcing federal law when the federal government fails to faithfully enforce its own laws. I cannot fathom any court in the land handcuffing a local jurisdiction preventing enforcement of federal law when it is in the best interest of the citizens of the state. A ruling against a state’s effort to protect its borders and its citizens has consequences far beyond legislation passed by the representatives of the people of Arizona, Georgia, Texas and other states where similar legislation is pending.

The following polices when put in place at the federal level will improve national security, reduce the financial burden associated with illegal migration to the US and open up employment opportunities for US citizens and resident aliens.

  • First and foremost, secure the borders. ICE must cooperate with border state governors to ensure borders are verifiably secure.
  • Fully fund and enforce the use of E-Verify by all employers. If an applicant is not a U.S. citizen, a naturalized citizen or a resident alien, then the applicant is not eligible for employment; no questions asked; no exceptions.
  • Fine any employer hiring an illegal alien, regardless of national origin; no questions asked; no exceptions.
  • Fully enforce the Immigration and Naturalization Act; no exceptions. Suspend recent DHS/DOJ backdoor, prosecutorial discretion, amnesty programs.
  • Withhold federal funding from so called sanctuary states that are providing federally funded government benefits to illegal immigrants.
  • No in-state tuition benefits for illegal aliens. No benefits for illegal aliens with impunity. No amnesty with impunity.
  • No new paths to citizenship. Promote the paths to citizenship that are already in place.
  • Reduce and limit the number of H1B visas; incentivize companies to hire US citizens and resident aliens over H1B visa applicants in the following fields, IT/Computing/Networking, Finance, Accounting, Banking, Marketing, Advertising PR/Sales, Engineering, Teaching, Healthcare/Medical, Business Administration and Management.
  • Reduce and limit the number of H2B visas; those available to employers of temporary foreign workers and require employers to pay the cost of the visa.
  • Reserve birthright citizenship for the children of US citizens and legal permanent residents.
  • Revise the quota system that imposes a limit on the number and makeup of immigrants who can legally enter the United States.
  • Empower the states. Expand 287(g) programs allowing local law enforcement agencies to enter into agreements with ICE to enforce immigration law.

Sour the milk and no one will want to drink from the bottle. The above CitizenApppolicies will send a clear message to those wanting to migrate to the United States and to illegal aliens already in the country - We will no longer tolerate illegal migration to the United States!

The Administration, DOJ and DHS must not focus their resources on mounting challenges to state immigration statue; they must focus resources on enforcing the Immigration and Nationality Act [8 U.S.C. 1103(b)] and securing our borders. 

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